Miranda v. Arizona

In Miranda v. Arizona, the United States Supreme Court decided that the
prosecution in a criminal case may not use incriminating statements resulting
from questioning initiated by law enforcement officers after a person
has been taken into custody (arrested) or otherwise deprived of freedom
of action in any significant way (functional equivalent to arrest), unless
it is established the use of procedural safeguards (Miranda warning and
waiver) effective to secure the Fifth Amendment's privilege against self-incrimination
have been made.

Justice White's Dissenting Opinion

The proposition that the privilege against self-incrimination forbids in-custody
interrogation without the warnings specified in the majority opinion and
without a clear waiver of counsel has no significant support in the history
of the privilege or in the language of the Fifth Amendment. As for the
English authorities and the common law history, the privilege, firmly
established in the second half of the seventeenth century, was never applied
except to prohibit compelled judicial interrogations. The rule excluding
coerced confessions matured about 100 years later,

[b]ut there is nothing in the reports to suggest that the theory has its
roots in the privilege against self-incrimination. And, so far as the
cases reveal, the privilege, as such, seems to have been given effect
only in judicial proceedings, including the preliminary examinations by
authorized magistrates.

Our own constitutional provision provides that no person "shall be
compelled in any criminal case to be a witness against himself."
These words, when

[c]onsidered in the light to be shed by grammar and the dictionary . .
. , appear to signify simply that nobody shall be [384 U.S. 527] compelled
to give oral testimony against himself in a criminal proceeding under
way in which he is defendant.

Corwin, The Supreme Court's Construction of the Self-Incrimination Clause,
29 Mich.L.Rev. 1, 2. And there is very little in the surrounding circumstances
of the adoption of the Fifth Amendment or in the provisions of the then
existing state constitutions or in state practice which would give the
constitutional provision any broader meaning. Mayers, The Federal Witness'
Privilege Against Self-Incrimination: Constitutional or Common-Law? 4
American Journal of Legal History 107 (1960). Such a construction, however,
was considerably narrower than the privilege at common law, and, when
eventually faced with the issues, the Court extended the constitutional
privilege to the compulsory production of books and papers, to the ordinary
witness before the grand jury, and to witnesses generally. GO>Boyd
v. United States, 116 U.S. 616, and GO>Counselman v. Hitchcock, 142
U.S. 547. Both rules had solid support in common law history, if not in
the history of our own constitutional provision.

A few years later, the Fifth Amendment privilege was similarly extended
to encompass the then well established rule against coerced confessions:

In criminal trials, in the courts of the United States, wherever a question
arises whether a confession is incompetent because not voluntary, the
issue is controlled by that portion of the Fifth Amendment to the Constitution
of the United States, commanding that no person "shall be compelled
in any criminal case to be a witness against himself."

GO>Bram v. United States, 168 U.S. 532, GO>542. Although this view
has found approval in other cases, GO>Burdeau v. McDowell, 256 U.S.
465, GO>475; GO>Powers v. United States, 223 U.S. 303, GO>313;
GO>Shotwell v. United States, 371 U.S. 341, GO>347, it has also
been questioned, see GO>Brown v. Mississippi, 297 U.S. 278, GO>285;
GO>United States v. Carignan, [384 U.S. 528] 342 U.S. 36, GO>41;
GO>Stein v. New York, 346 U.S. 156, GO>191, n. 35, and finds scant
support in either the English or American authorities, see generally Regina
v. Scott, Dears. & Bell 47; 3 Wigmore, Evidence § 823 (3d ed.1940),
at 249 ("a confession is not rejected because of any connection with
the privilege against self-crimination"), and 250, n. 5 (particularly
criticizing Bram); 8 Wigmore, Evidence § 2266, at 400-401 (McNaughton
rev.1961). Whatever the source of the rule excluding coerced confessions,
it is clear that, prior to the application of the privilege itself to
state courts, GO>Malloy v. Hogan, 378 U.S. 1, the admissibility of
a confession in a state criminal prosecution was tested by the same standards
as were applied in federal prosecutions. Id. at GO>6-7, GO>10.

Bram, however, itself rejected the proposition which the Court now espouses.
The question in Bram was whether a confession, obtained during custodial
interrogation, had been compelled, and, if such interrogation was to be
deemed inherently vulnerable, the Court's inquiry could have ended there.
After examining the English and American authorities, however, the Court
declared that:

In this court also, it has been settled that the mere fact that the confession
is made to a police officer, while the accused was under arrest in or
out of prison, or was drawn out by his questions, does not necessarily
render the confession involuntary, but, as one of the circumstances, such
imprisonment or interrogation may be taken into account in determining
whether or not the statements of the prisoner were voluntary.

168 U.S. at GO>558. In this respect, the Court was wholly consistent
with prior and subsequent pronouncements in this Court.

Thus, prior to Bram, the Court, in GO>Hopt v. Utah, 110 U.S. 574, GO>583-587,
had upheld the admissibility of a [384 U.S. 529] confession made to police
officers following arrest, the record being silent concerning what conversation
had occurred between the officers and the defendant in the short period
preceding the confession. Relying on Hopt, the Court ruled squarely on
the issue in GO>Sparf and Hansen v. United States, 156 U.S. 51, GO>55:

Counsel for the accused insist that there cannot be a voluntary statement,
a free open confession, while a defendant is confined and in irons under
an accusation of having committed a capital offence. We have not been
referred to any authority in support of that position. It is true that
the fact of a prisoner's being in custody at the time he makes a confession
is a circumstance not to be overlooked, because it bears upon the inquiry
whether the confession was voluntarily made or was extorted by threats
or violence or made under the influence of fear. But confinement or imprisonment
is not, in itself, sufficient to justify the exclusion of a confession
if it appears to have been voluntary, and was not obtained by putting
the prisoner in fear or by promises. Wharton's Cr.Ev. 9th ed. §§
661, 663, and authorities cited.

Accord, GO>Pierce v. United States, 160 U.S. 355, GO>357.

And in GO>Wilson v. United States, 162 U.S. 613, GO>623, the Court
had considered the significance of custodial interrogation without any
antecedent warnings regarding the right to remain silent or the right
to counsel. There, the defendant had answered questions posed by a Commissioner,
who had failed to advise him of his rights, and his answers were held
admissible over his claim of involuntariness.

The fact that [a defendant] is in custody and manacled does not necessarily
render his statement involuntary, nor is that necessarily the effect of
popular excitement shortly preceding. . . . And it is laid down [384 U.S.
530] that it is not essential to the admissibility of a confession that
it should appear that the person was warned that what he said would be
used against him, but, on the contrary, if the confession was voluntary,
it is sufficient though it appear that he was not so warned.

Since Bram, the admissibility of statements made during custodial interrogation
has been frequently reiterated. GO>Powers v. United States, 223 U.S.
303, cited Wilson approvingly and held admissible as voluntary statements
the accused's testimony at a preliminary hearing even though he was not
warned that what he said might be used against him. Without any discussion
of the presence or absence of warnings, presumably because such discussion
was deemed unnecessary, numerous other cases have declared that "[t]he
mere fact that a confession was made while in the custody of the police
does not render it inadmissible," GO>McNabb v. United States,
318 U.S. 332, GO>346; accord, GO>United States v. Mitchell, 322
U.S. 65, despite its having been elicited by police examination, GO>Wan
v. United States, 266 U.S. 1, GO>14; GO>United States v. Carignan,
342 U.S. 36, GO>39. Likewise, in GO>Crooker v. California, 357 U.S.
433, GO>437, the Court said that

the bare fact of police "detention and police examination in private
of one in official state custody" does not render involuntary a confession
by the one so detained.

And finally, in GO>Cicenia v. Lagay, 357 U.S. 504, a confession obtained
by police interrogation after arrest was held voluntary even though the
authorities refused to permit the defendant to consult with his attorney.
See generally GO>Culombe v. Connecticut, 367 U.S. 568, GO>587-602
(opinion of Frankfurter, J.); 3 Wigmore, Evidence § 851, at 313 (3d
ed.1940); see also Joy, Admissibility of Confessions 38, 46 (1842).

Only a tiny minority of our judges who have dealt with the question, including
today's majority, have considered in-custody interrogation, without more,
to be a violation of the Fifth Amendment. And this Court, as [384 U.S.
531] every member knows, has left standing literally thousands of criminal
convictions that rested at least in part on confessions taken in the course
of interrogation by the police after arrest.

II

That the Court's holding today is neither compelled nor even strongly suggested
by the language of the Fifth Amendment, is at odds with American and English
legal history, and involves a departure from a long line of precedent
does not prove either that the Court has exceeded its powers or that the
Court is wrong or unwise in its present reinterpretation of the Fifth
Amendment. It does, however, underscore the obvious -- that the Court
has not discovered or found the law in making today's decision, nor has
it derived it from some irrefutable sources; what it has done is to make
new law and new public policy in much the same way that it has in the
course of interpreting other great clauses of the Constitution.
This is what the Court historically has done. Indeed, it is what it must
do, and will continue to do until and unless there is some fundamental
change in the constitutional distribution of governmental powers.

But if the Court is here and now to announce new and fundamental policy
to govern certain aspects of our affairs, it is wholly legitimate to examine
the mode of this or any other constitutional decision in this Court, and
to inquire into the advisability of its end product in terms of the long-range
interest of the country. At the very least, the Court's text and reasoning
should withstand analysis, and be a fair exposition of the constitutional
provision which its opinion interprets. Decisions [384 U.S. 532] like
these cannot rest alone on syllogism, metaphysics or some ill-defined
notions of natural justice, although each will perhaps play its part.
In proceeding to such constructions as it now announces, the Court should
also duly consider all the factors and interests bearing upon the cases,
at least insofar as the relevant materials are available, and, if the
necessary considerations are not treated in the record or obtainable from
some other reliable source, the Court should not proceed to formulate
fundamental policies based on speculation alone.

III

First, we may inquire what are the textual and factual bases of this new
fundamental rule. To reach the result announced on the grounds it does,
the Court must stay within the confines of the Fifth Amendment, which
forbids self-incrimination only if compelled. Hence, the core of the Court's
opinion is that, because of the

compulsion inherent in custodial surroundings, no statement obtained from
[a] defendant [in custody] can truly be the product of his free choice,

ante at GO>458, absent the use of adequate protective devices as described
by the Court. However, the Court does not point to any sudden inrush of
new knowledge requiring the rejection of 70 years' experience. Nor does
it assert that its novel conclusion reflects a changing consensus among
state courts, see GO>Mapp v. Ohio, 367 U.S. 643, or that a succession
of cases had steadily eroded the old rule and proved it unworkable, see
GO>Gideon v. Wainwright, 372 U.S. 335. Rather than asserting new knowledge,
the Court concedes that it cannot truly know what occurs during custodial
questioning, because of the innate secrecy of such proceedings. It extrapolates
a picture of what it conceives to be the norm from police investigatorial
manuals, published in 1959 and 1962 or earlier, without any attempt to
allow for adjustments in police practices that may [384 U.S. 533] have
occurred in the wake of more recent decisions of state appellate tribunals
or this Court. But even if the relentless application of the described
procedures could lead to involuntary confessions, it most assuredly does
not follow that each and every case will disclose this kind of interrogation
or this kind of consequence. Insofar as appears from the Court's
opinion, it has not examined a single transcript of any police interrogation,
let alone the interrogation that took place in any one of these cases
which it decides today. Judged by any of the standards for empirical investigation
utilized in the social sciences, the factual basis for the Court's premise
is patently inadequate.

Although, in the Court's view, in-custody interrogation is inherently coercive,
the Court says that the spontaneous product of the coercion of arrest
and detention is still to be deemed voluntary. An accused, arrested on
probable cause, may blurt out a confession which will be admissible despite
the fact that he is alone and in custody, without any showing that he
had any notion of his right to remain silent or of the consequences of
his admission. Yet, under the Court's rule, if the police ask him a single
question, such as "Do you have anything to say?" or "Did
you kill your wife?", his response, if there is one, has somehow
been compelled, even if the accused has [384 U.S. 534] been clearly warned
of his right to remain silent. Common sense informs us to the contrary.
While one may say that the response was "involuntary" in the
sense the question provoked or was the occasion for the response, and
thus the defendant was induced to speak out when he might have remained
silent if not arrested and not questioned, it is patently unsound to say
the response is compelled.

Today's result would not follow even if it were agreed that, to some extent,
custodial interrogation is inherently coercive. See GO>Ashcraft v.
Tennessee, 322 U.S. 143, GO>161 (Jackson, J., dissenting). The test
has been whether the totality of circumstances deprived the defendant
of a "free choice to admit, to deny, or to refuse to answer,"
GO>Lisenba v. California, 314 U.S. 219, GO>241, and whether physical
or psychological coercion was of such a degree that "the defendant's
will was overborne at the time he confessed," GO>Haynes v. Washington,
373 U.S. 503, GO>513; GO>Lynumn v. Illinois, 372 U.S. 528, GO>534.
The duration and nature of incommunicado custody, the presence or absence
of advice concerning the defendant's constitutional rights, and the granting
or refusal of requests to communicate with lawyers, relatives or friends
have all been rightly regarded as important data bearing on the basic
inquiry. See, e.g., GO>Ashcraft v. Tennessee, 322 U.S. 143; GO>Haynes
v. Washington, 373 U.S. 503. [384 U.S. 535] But it has never
been suggested, until today, that such questioning was so coercive and
accused persons so lacking in hardihood that the very first response to
the very first question following the commencement of custody must be
conclusively presumed to be the product of an overborne will.

If the rule announced today were truly based on a conclusion that all confessions
resulting from custodial interrogation are coerced, then it would simply
have no rational foundation. Compare GO>Tot v. United States, 319 U.S.
463, GO>466; GO>United States v. Romano, 382 U.S. 136. A fortiori,
that would be true of the extension of the rule to exculpatory statements,
which the Court effects after a brief discussion of why, in the Court's
view, they must be deemed incriminatory, but without any discussion of
why they must be deemed coerced. See GO>Wilson v. United States, 162
U.S. 613, GO>624. Even if one were to postulate that the Court's concern
is not that all confessions induced by police interrogation are coerced,
but rather that some such confessions are coerced and present judicial
procedures are believed to be inadequate to identify the confessions that
are coerced and those that are not, it would still not be essential to
impose the rule that the Court has now fashioned. Transcripts or observers
could be required, specific time limits, tailored to fit the cause, could
be imposed, or other devices could be utilized to reduce the chances that
otherwise indiscernible coercion will produce an inadmissible confession.

On the other hand, even if one assumed that there was an adequate factual
basis for the conclusion that all confessions obtained during in-custody
interrogation are the product of compulsion, the rule propounded by [384
U.S. 536] the Court would still be irrational, for, apparently, it is
only if the accused is also warned of his right to counsel and waives
both that right and the right against self-incrimination that the inherent
compulsiveness of interrogation disappears. But if the defendant may not
answer without a warning a question such as "Where were you last
night?" without having his answer be a compelled one, how can the
Court ever accept his negative answer to the question of whether he wants
to consult his retained counsel or counsel whom the court will appoint?
And why, if counsel is present and the accused nevertheless confesses,
or counsel tells the accused to tell the truth and that is what the accused
does, is the situation any less coercive insofar as the accused is concerned?
The Court apparently realizes its dilemma of foreclosing questioning without
the necessary warnings but, at the same time, permitting the accused,
sitting in the same chair in front of the same policemen, to waive his
right to consult an attorney. It expects, however, that the accused will
not often waive the right, and, if it is claimed that he has, the State
faces a severe, if not impossible burden of proof.

All of this makes very little sense in terms of the compulsion which the
Fifth Amendment proscribes. That amendment deals with compelling the accused
himself. It is his free will that is involved. Confessions and incriminating
admissions, as such, are not forbidden evidence; only those which are
compelled are banned. I doubt that the Court observes these distinctions
today. By considering any answers to any interrogation to be compelled
regardless of the content and course of examination, and by escalating
the requirements to prove waiver, the Court not only prevents the use
of compelled confessions, but, for all practical purposes, forbids interrogation
except in the presence of counsel. That is, instead of confining itself
to protection of the right against compelled [384 U.S. 537] self-incrimination
the Court has created a limited Fifth Amendment right to counsel -- or,
as the Court expresses it, a "need for counsel to protect the Fifth
Amendment privilege. . . ." Ante at GO>470. The focus then is
not on the will of the accused, but on the will of counsel, and how much
influence he can have on the accused. Obviously there is no warrant in
the Fifth Amendment for thus installing counsel as the arbiter of the
privilege.

In sum, for all the Court's expounding on the menacing atmosphere of police
interrogation procedures, it has failed to supply any foundation for the
conclusions it draws or the measures it adopts.

IV

Criticism of the Court's opinion, however, cannot stop with a demonstration
that the factual and textual bases for the rule it propounds are, at best,
less than compelling. Equally relevant is an assessment of the rule's
consequences measured against community values. The Court's duty to assess
the consequences of its action is not satisfied by the utterance of the
truth that a value of our system of criminal justice is "to respect
the inviolability of the human personality" and to require government
to produce the evidence against the accused by its own independent labors.
Ante at GO>460. More than the human dignity of the accused is involved;
the human personality of others in the society must also be preserved.
Thus, the values reflected by the privilege are not the sole desideratum;
society's interest in the general security is of equal weight.

The obvious underpinning of the Court's decision is a deep-seated distrust
of all confessions. As the Court declares that the accused may not be
interrogated without counsel present, absent a waiver of the right to
counsel, and as the Court all but admonishes the lawyer to [384 U.S. 538]
advise the accused to remain silent, the result adds up to a judicial
judgment that evidence from the accused should not be used against him
in any way, whether compelled or not. This is the not so subtle overtone
of the opinion -- that it is inherently wrong for the police to gather
evidence from the accused himself. And this is precisely the nub of this
dissent. I see nothing wrong or immoral, and certainly nothing unconstitutional,
in the police's asking a suspect whom they have reasonable cause to arrest
whether or not he killed his wife, or in confronting him with the evidence
on which the arrest was based, at least where he has been plainly advised
that he may remain completely silent, see GO>Escobedo v. Illinois,
378 U.S. 478, GO>499 (dissenting opinion). Until today, "the admissions
or confessions of the prisoner, when voluntarily and freely made, have
always ranked high in the scale of incriminating evidence." GO>Brown
v. Walker, 161 U.S. 591, GO>596; see also GO>Hopt v. Utah, 110 U.S.
574, GO>584-585. Particularly when corroborated, as where the police
have confirmed the accused's disclosure of the hiding place of implements
or fruits of the crime, such confessions have the highest reliability,
and significantly contribute to the certitude with which we may believe
the accused is guilty. Moreover, it is by no means certain that the process
of confessing is injurious to the accused. To the contrary, it may provide
psychological relief, and enhance the prospects for rehabilitation. This
is not to say that the value of respect for the inviolability of the accused's
individual personality should be accorded no weight, or that all confessions
should be indiscriminately admitted. This Court has long read the Constitution
to proscribe compelled confessions, a salutary rule from which there should
be no retreat. But I see no sound basis, factual or otherwise, and the
Court gives none, for concluding that the present rule against the receipt
of coerced confessions is inadequate for the [384 U.S. 539] task of sorting
out inadmissible evidence, and must be replaced by the per se rule which
is now imposed. Even if the new concept can be said to have advantages
of some sort over the present law, they are far outweighed by its likely
undesirable impact on other very relevant and important interests.

The most basic function of any government is to provide for the security
of the individual and of his property. GO>Lanzetta v. New Jersey, 306
U.S. 451, GO>455. These ends of society are served by the criminal
laws which for the most part are aimed at the prevention of crime. Without
the reasonably effective performance of the task of preventing private
violence and retaliation, it is idle to talk about human dignity and civilized values.

The modes by which the criminal laws serve the interest in general security
are many. First, the murderer who has taken the life of another is removed
from the streets, deprived of his liberty, and thereby prevented from
repeating his offense. In view of the statistics on recidivism in this
country, and of the number of instances [384 U.S. 540] in which
apprehension occurs only after repeated offenses, no one can sensibly
claim that this aspect of the criminal law does not prevent crime or contribute
significantly to the personal security of the ordinary citizen.

Secondly, the swift and sure apprehension of those who refuse to respect
the personal security and dignity of their neighbor unquestionably has
its impact on others who might be similarly tempted. That the criminal
law is wholly or partly ineffective with a segment of the population or
with many of those who have been apprehended and convicted is a very faulty
basis for concluding that it is not effective with respect to the great
bulk of our citizens, or for thinking that, without the criminal laws,
[384 U.S. 541] or in the absence of their enforcement, there would be
no increase in crime. Arguments of this nature are not borne out by any
kind of reliable evidence that I have seen to this date.

Thirdly, the law concerns itself with those whom it has confined. The hope
and aim of modern penology, fortunately, is as soon as possible to return
the convict to society a better and more law-abiding man than when he
left. Sometimes there is success, sometimes failure. But at least the
effort is made, and it should be made to the very maximum extent of our
present and future capabilities.

The rule announced today will measurably weaken the ability of the criminal
law to perform these tasks. It is a deliberate calculus to prevent interrogations,
to reduce the incidence of confessions and pleas of guilty, and to increase
the number of trials. Criminal trials, no [384 U.S. 542] matter
how efficient the police are, are not sure bets for the prosecution, nor
should they be if the evidence is not forthcoming. Under the present law,
the prosecution fails to prove its case in about 30% of the criminal cases
actually tried in the federal courts. See Federal Offenders: 1964, supra,
GO>note 4, at 6 (Table 4), 59 (Table 1); Federal Offenders: 1963, supra,
GO>note 4, at 5 (Table 3); District of Columbia Offenders: 1963, supra,
GO>note 4, at 2 (Table 1). But it is something else again to remove
from the ordinary criminal case all those confessions which heretofore
have been held to be free and voluntary acts of the accused, and to thus
establish a new constitutional barrier to the ascertainment of truth by
the judicial process. There is, in my view, every reason to believe that
a good many criminal defendants who otherwise would have been convicted
on what this Court has previously thought to be the most satisfactory
kind of evidence will now, under this new version of the Fifth Amendment,
either not be tried at all or will be acquitted if the State's evidence,
minus the confession, is put to the test of litigation.

I have no desire whatsoever to share the responsibility for any such impact
on the present criminal process.

In some unknown number of cases, the Court's rule will return a killer,
a rapist or other criminal to the streets and to the environment which
produced him, to repeat his crime whenever it pleases him. As a consequence,
there will not be a gain, but a loss, in human dignity. The real concern
is not the unfortunate consequences of this new decision on the criminal
law as an abstract, disembodied series of authoritative proscriptions,
but the impact on those who rely on the public authority for protection,
and who, without it, can only engage in violent self-help with guns, knives
and the help of their neighbors similarly inclined. There is, of [384
U.S. 543] course, a saving factor: the next victims are uncertain, unnamed
and unrepresented in this case.

Nor can this decision do other than have a corrosive effect on the criminal
law as an effective device to prevent crime. A major component in its
effectiveness in this regard is its swift and sure enforcement. The easier
it is to get away with rape and murder, the less the deterrent effect
on those who are inclined to attempt it. This is still good common sense.
If it were not, we should post-haste liquidate the whole law enforcement
establishment as a useless, misguided effort to control human conduct.

And what about the accused who has confessed or would confess in response
to simple, noncoercive questioning and whose guilt could not otherwise
be proved? Is it so clear that release is the best thing for him in every
case? Has it so unquestionably been resolved that, in each and every case,
it would be better for him not to confess, and to return to his environment
with no attempt whatsoever to help him? I think not. It may well be that,
in many cases, it will be no less than a callous disregard for his own
welfare, as well as for the interests of his next victim.

There is another aspect to the effect of the Court's rule on the person
whom the police have arrested on probable cause. The fact is that he may
not be guilty at all, and may be able to extricate himself quickly and
simply if he were told the circumstances of his arrest and were asked
to explain. This effort, and his release, must now await the hiring of
a lawyer or his appointment by the court, consultation with counsel, and
then a session with the police or the prosecutor. Similarly, where probable
cause exists to arrest several suspects, as where the body of the victim
is discovered in a house having several residents, compare Johnson v.
State, 238 Md. 140, 207 A.2d 643 (1965), cert. denied, 382 U.S. 1013,
it will often [384 U.S. 544] be true that a suspect may be cleared only
through the results of interrogation of other suspects. Here too, the
release of the innocent may be delayed by the Court's rule.

Much of the trouble with the Court's new rule is that it will operate indiscriminately
in all criminal cases, regardless of the severity of the crime or the
circumstances involved. It applies to every defendant, whether the professional
criminal or one committing a crime of momentary passion who is not part
and parcel of organized crime. It will slow down the investigation and
the apprehension of confederates in those cases where time is of the essence,
such as kidnapping, see GO>Brinegar v. United States, 338 U.S. 160,
GO>183 (Jackson, J., dissenting); People v. Modesto, 62 Cal.2d 436,
446, 398 P.2d 753, 759 (1965), those involving the national security,
see United States v. Drummond, 354 F.2d 132, 147 (C.A.2d Cir.1965) (en
banc) (espionage case), pet. for cert. pending, No. 1203, Misc., O.T.
1965; cf. Gessner v. United States, 354 F.2d 726, 730, n. 10 (C.A. 10th
Cir.1965) (upholding, in espionage case, trial ruling that Government
need not submit classified portions of interrogation transcript), and
some of those involving organized crime. In the latter context, the lawyer
who arrives may also be the lawyer for the defendant's colleagues, and
can be relied upon to insure that no breach of the organization's security
takes place even though the accused may feel that the best thing he can
do is to cooperate.

At the same time, the Court's per se approach may not be justified on the
ground that it provides a "bright line" permitting the authorities
to judge in advance whether interrogation may safely be pursued without
jeopardizing the admissibility of any information obtained as a consequence.
Nor can it be claimed that judicial time and effort, assuming that is
a relevant consideration, [384 U.S. 545] will be conserved because of
the ease of application of the new rule. Today's decision leaves open
such questions as whether the accused was in custody, whether his statements
were spontaneous or the product of interrogation, whether the accused
has effectively waived his rights, and whether nontestimonial evidence
introduced at trial is the fruit of statements made during a prohibited
interrogation, all of which are certain to prove productive of uncertainty
during investigation and litigation during prosecution. For all these
reasons, if further restrictions on police interrogation are desirable
at this time, a more flexible approach makes much more sense than the
Court's constitutional straitjacket, which forecloses more discriminating
treatment by legislative or rulemaking pronouncements.

Applying the traditional standards to the cases before the Court, I would
hold these confessions voluntary. I would therefore affirm in Nos. 759,
760, and 761, and reverse in No. 584.

Footnotes

WHITE, J., dissenting (Footnotes)

­FN 1. Of course, the Court does not deny that it is departing from
prior precedent; it expressly overrules Crooker and Cicenia, ante at GO>479,
n. 48, and it acknowledges that, in the instant "cases, we might
not find the defendants' statements to have been involuntary in traditional
terms," ante at GO>457.

­FN 2. In fact, the type of sustained interrogation described by the
Court appears to be the exception, rather than the rule. A survey of 399
cases in one city found that, in almost half of the cases, the interrogation
lasted less than 30 minutes. Barrett, Police Practices and the Law --
From Arrest to Release or Charge, 50 Calif.L.Rev. 11, 41-45 (1962). Questioning
tends to be confused and sporadic, and is usually concentrated on confrontations
with witnesses or new items of evidence as these are obtained by officers
conducting the investigation. See generally LaFave, Arrest: The Decision
to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment
Procedure, Commentary § 5.01, at 170, n. 4 (Tent.Draft No. 1, 1966).

­FN 3. By contrast, the Court indicates that, in applying this new
rule, it "will not pause to inquire in individual cases whether the
defendant was aware of his rights without a warning being given."
Ante at GO>468. The reason given is that assessment of the knowledge
of the defendant based on information as to age, education, intelligence,
or prior contact with authorities can never be more than speculation,
while a warning is a clear-cut fact. But the officers' claim that they
gave the requisite warnings may be disputed, and facts respecting the
defendant's prior experience may be undisputed, and be of such a nature
as to virtually preclude any doubt that the defendant knew of his rights.
See United States v. Bolden, 355 F.2d 453 (C.A. 7th Cir.1965), petition
for cert. pending, No. 1146, O.T. 1965 (Secret Service agent); People
v. Du Bont, 235 Cal.App.2d 844, 45 Cal.Rptr. 717, pet. for cert. pending
No. 1053, Misc., O.T. 1965 (former police officer).

­FN 4. Precise statistics on the extent of recidivism are unavailable,
in part because not all crimes are solved and in part because criminal
records of convictions in different jurisdictions are not brought together
by a central data collection agency. Beginning in 1963, however, the Federal
Bureau of Investigation began collating data on "Careers in Crime,"
which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed
in 1963 and 1964, 76% had a prior arrest record on some charge. Over a
period of 10 years, the group had accumulated 434,000 charges. FBI, Uniform
Crime Reports -- 1964, 27-28. In 1963 and 1964, between 23% and 25% of
all offenders sentenced in 88 federal district courts (excluding the District
Court for the District of Columbia) whose criminal records were reported
had previously been sentenced to a term of imprisonment of 13 months or
more. Approximately an additional 40% had a prior record less than prison
(juvenile record, probation record, etc.). Administrative Office of the
United States Courts, Federal Offenders in the United States District
Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative
Office of the United States Courts, Federal Offenders in the United States
District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders:
1963). During the same two years in the District Court for the District
of Columbia, between 28% and 35% of those sentenced had prior prison records,
and from 37% to 40% had a prior record less than prison. Federal Offenders:
1964, xii, 64, 66; Administrative Office of the United States Courts,
Federal Offenders in the United States District Court for the District
of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963).

A similar picture is obtained if one looks at the subsequent records of
those released from confinement. In 1964, 12.3% of persons on federal
probation had their probation revoked because of the commission of major
violations (defined as one in which the probationer has been committed
to imprisonment for a period of 90 days or more, been placed on probation
for over one year on a new offense, or has absconded with felony charges
outstanding). Twenty-three and two-tenths percent of parolees and 16.9%
of those who had been mandatorily released after service of a portion
of their sentence likewise committed major violations. Reports of the
Proceedings of the Judicial Conference of the United States and Annual
Report of the Director of the Administrative Office of the United States
Courts: 1965, 138. See also Mandel et al., Recidivism Studied and Defined,
56 J.Crim.L., C. & P. S. 59 (1965) (within five years of release,
62.33% of sample had committed offenses placing them in recidivist category).

­FN 5. Eighty-eight federal district courts (excluding the District
Court for the District of Columbia) disposed of the cases of 33,381 criminal
defendants in 1964. Only 12.5% of those cases were actually tried. Of
the remaining cases, 89.9% were terminated by convictions upon pleas of
guilty and 10.1% were dismissed. Stated differently, approximately 90%
of all convictions resulted from guilty pleas. Federal Offenders: 1964,
supra, note 4, 3-6. In the District Court for the District of Columbia,
a higher percentage, 27%, went to trial, and the defendant pleaded guilty
in approximately 78% of the cases terminated prior to trial. Id. at 58-59.
No reliable statistics are available concerning the percentage of cases
in which guilty pleas are induced because of the existence of a confession
or of physical evidence unearthed as a result of a confession. Undoubtedly
the number of such cases is substantial.

Perhaps of equal significance is the number of instances of known crimes
which are not solved. In 1964, only 388,946, or 23.9%, of 1,626,574 serious
known offenses were cleared. The clearance rate ranged from 89.8% for
homicides to 18.7% for larceny. FBI, Uniform Crime Reports -- 1964, 20-22,
101. Those who would replace interrogation as an investigatorial tool
by modern scientific investigation techniques significantly overestimate
the effectiveness of present procedures, even when interrogation is included.

Footnotes

WHITE, J., dissenting (Footnotes)

­FN 1. Of course, the Court does not deny that it is departing from
prior precedent; it expressly overrules Crooker and Cicenia, ante at GO>479,
n. 48, and it acknowledges that, in the instant "cases, we might
not find the defendants' statements to have been involuntary in traditional
terms," ante at GO>457.

­FN 2. In fact, the type of sustained interrogation described by the
Court appears to be the exception, rather than the rule. A survey of 399
cases in one city found that, in almost half of the cases, the interrogation
lasted less than 30 minutes. Barrett, Police Practices and the Law --
From Arrest to Release or Charge, 50 Calif.L.Rev. 11, 41-45 (1962). Questioning
tends to be confused and sporadic, and is usually concentrated on confrontations
with witnesses or new items of evidence as these are obtained by officers
conducting the investigation. See generally LaFave, Arrest: The Decision
to Take a Suspect into Custody 386 (1965); ALI, A Model Code of Pre-Arraignment
Procedure, Commentary § 5.01, at 170, n. 4 (Tent.Draft No. 1, 1966).

­FN 3. By contrast, the Court indicates that, in applying this new
rule, it "will not pause to inquire in individual cases whether the
defendant was aware of his rights without a warning being given."
Ante at GO>468. The reason given is that assessment of the knowledge
of the defendant based on information as to age, education, intelligence,
or prior contact with authorities can never be more than speculation,
while a warning is a clear-cut fact. But the officers' claim that they
gave the requisite warnings may be disputed, and facts respecting the
defendant's prior experience may be undisputed, and be of such a nature
as to virtually preclude any doubt that the defendant knew of his rights.
See United States v. Bolden, 355 F.2d 453 (C.A. 7th Cir.1965), petition
for cert. pending, No. 1146, O.T. 1965 (Secret Service agent); People
v. Du Bont, 235 Cal.App.2d 844, 45 Cal.Rptr. 717, pet. for cert. pending
No. 1053, Misc., O.T. 1965 (former police officer).

­FN 4. Precise statistics on the extent of recidivism are unavailable,
in part because not all crimes are solved and in part because criminal
records of convictions in different jurisdictions are not brought together
by a central data collection agency. Beginning in 1963, however, the Federal
Bureau of Investigation began collating data on "Careers in Crime,"
which it publishes in its Uniform Crime Reports. Of 92,869 offenders processed
in 1963 and 1964, 76% had a prior arrest record on some charge. Over a
period of 10 years, the group had accumulated 434,000 charges. FBI, Uniform
Crime Reports -- 1964, 27-28. In 1963 and 1964, between 23% and 25% of
all offenders sentenced in 88 federal district courts (excluding the District
Court for the District of Columbia) whose criminal records were reported
had previously been sentenced to a term of imprisonment of 13 months or
more. Approximately an additional 40% had a prior record less than prison
(juvenile record, probation record, etc.). Administrative Office of the
United States Courts, Federal Offenders in the United States District
Courts: 1964, x, 36 (hereinafter cited as Federal Offenders: 1964); Administrative
Office of the United States Courts, Federal Offenders in the United States
District Courts: 1963, 25-27 (hereinafter cited as Federal Offenders:
1963). During the same two years in the District Court for the District
of Columbia, between 28% and 35% of those sentenced had prior prison records,
and from 37% to 40% had a prior record less than prison. Federal Offenders:
1964, xii, 64, 66; Administrative Office of the United States Courts,
Federal Offenders in the United States District Court for the District
of Columbia: 1963, 8, 10 (hereinafter cited as District of Columbia Offenders: 1963).

A similar picture is obtained if one looks at the subsequent records of
those released from confinement. In 1964, 12.3% of persons on federal
probation had their probation revoked because of the commission of major
violations (defined as one in which the probationer has been committed
to imprisonment for a period of 90 days or more, been placed on probation
for over one year on a new offense, or has absconded with felony charges
outstanding). Twenty-three and two-tenths percent of parolees and 16.9%
of those who had been mandatorily released after service of a portion
of their sentence likewise committed major violations. Reports of the
Proceedings of the Judicial Conference of the United States and Annual
Report of the Director of the Administrative Office of the United States
Courts: 1965, 138. See also Mandel et al., Recidivism Studied and Defined,
56 J.Crim.L., C. & P. S. 59 (1965) (within five years of release,
62.33% of sample had committed offenses placing them in recidivist category).

­FN 5. Eighty-eight federal district courts (excluding the District
Court for the District of Columbia) disposed of the cases of 33,381 criminal
defendants in 1964. Only 12.5% of those cases were actually tried. Of
the remaining cases, 89.9% were terminated by convictions upon pleas of
guilty and 10.1% were dismissed. Stated differently, approximately 90%
of all convictions resulted from guilty pleas. Federal Offenders: 1964,
supra, note 4, 3-6. In the District Court for the District of Columbia,
a higher percentage, 27%, went to trial, and the defendant pleaded guilty
in approximately 78% of the cases terminated prior to trial. Id. at 58-59.
No reliable statistics are available concerning the percentage of cases
in which guilty pleas are induced because of the existence of a confession
or of physical evidence unearthed as a result of a confession. Undoubtedly
the number of such cases is substantial.

Perhaps of equal significance is the number of instances of known crimes
which are not solved. In 1964, only 388,946, or 23.9%, of 1,626,574 serious
known offenses were cleared. The clearance rate ranged from 89.8% for
homicides to 18.7% for larceny. FBI, Uniform Crime Reports -- 1964, 20-22,
101. Those who would replace interrogation as an investigatorial tool
by modern scientific investigation techniques significantly overestimate
the effectiveness of present procedures, even when interrogation is included.

The full text of the Miranda decision is included for the reader. It is
divided into following parts:

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